Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 32220/96

by Jacek CHOJAK

against Poland

The European Commission of Human Rights sitting in private on

23 April 1998, the following members being present:

MM S. TRECHSEL, President

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

I. BÉKÉS

J. MUCHA

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

Mr M. de SALVIA, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 December 1995

by Jacek CHOJAK against Poland and registered on 11 July 1996 under

file No. 32220/96;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

18 April 1997 and the observations in reply submitted by the

applicant on 18 June 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1971, is a bricklayer

currently detained in Lowicz prison.

The facts of the case, as submitted by the parties, may be

summarised as follows:

A. Particular circumstances of the case

On 1 June 1995 the Trzebnica District Prosecutor (Prokurator

Rejonowy) issued a warrant to search for the applicant by a wanted

notice. This was due to the fact that the applicant, who was suspected

of committing robbery, had apparently gone into hiding. On 13 June

1995 the applicant was arrested by the police.

On 14 June 1995 the Trzebnica District Prosecutor charged the

applicant with robbery and detained him on remand for three months in

view of the reasonable suspicion that he had committed the offence with

which he had been charged.

On 11 September 1995 the Trzebnica District Prosecutor lodged a

bill of indictment with the Wroclaw Regional Court (S*d Wojewódzki).

The applicant was indicted of robbery and common assault committed

together with two accomplices.

On 5 October 1995 the applicant requested the Wroclaw Regional

Court to release him. On 13 October 1995 the court dismissed his

request. He did not appeal against this decision.

From 21 November to 1 December 1995 the applicant was serving

another sentence since, in the meantime, a fine previously imposed on

him had been converted into ten days' imprisonment.

On 5 December 1995 the applicant requested the Wroclaw Regional

Court to release him. He asserted that his prolonged isolation from

his family argued for his release and that as he had confessed his

guilt he had clearly shown his willingness to cooperate with the

authorities.

On 14 December 1995 his request was dismissed on the grounds that

there was a reasonable suspicion that he had committed a serious crime

and that the need to ensure the due course of proceedings still

existed. The Wroclaw Regional Prosecutor (Prokurator Wojewódzki)

participated in the court session which was held in camera.

On an unspecified date in January 1996 the applicant appealed

against the above decision. He submitted that under the recent

amendments to the Polish Criminal Code, which were introduced on 1

January 1996, a person who committed a trivial robbery had a right to

make a plea in mitigation.

On 8 January 1996, the Wroclaw Regional Court, sitting in camera,

declared that, due to the amendment to the Criminal Code of 29 June

1995 which had been introduced on 1 January 1996, it no longer had

jurisdiction with respect to the subject matter of the case and ordered

the case to be transferred to the Trzebnica District Court (S*d

Rejonowy).

On 9 January 1996, upon the applicant's appeal, the Wroclaw Court

of Appeal (S*d Apelacyjny) upheld the decision of 14 December 1995 and

held that, notwithstanding the existence of mitigating circumstances

which would be relevant to the final judgment, the detention should be

maintained in view of the reasonable suspicion that the applicant had

committed the crime in question and the need to ensure the due course

of proceedings. The Wroclaw Prosecutor of Appeal (Prokurator

Apelacyjny) participated in the court session.

On 16 January 1996 the applicant requested the Trzebnica District

Court to quash the detention order or to replace it by police

supervision.

On 15 February 1996 his request was dismissed. The court found

that the need to maintain the detention still existed and that no

circumstances militated in favour of the applicant's release. The

Trzebnica District Prosecutor took part in the court session.

On 1 March 1996 the applicant appealed to the Wroclaw Regional

Court, submitting that his detention should no longer be maintained on

account of the fact that the criminal proceedings instituted against

him had been going on for an unreasonably long time.

On 4 March 1996 he again requested the Trzebnica District Court

to release him. The court dismissed his request on 13 March 1996. The

applicant did not appeal against this decision.

On 6 March 1996 the court ordered that evidence be taken from

psychiatric experts in order to establish whether tempore criminis the

applicant's co-defendant had acted in a state of diminished

responsibility. The experts submitted their report to the court on

14 April 1996.

In the meantime, on 8 March 1996, the Wroclaw Regional Court

upheld the decision of 15 February 1996 on the grounds that there was

a reasonable suspicion that the applicant had committed the offence in

question and that the need to ensure the due course of proceedings

still existed. The court held that the length of proceedings did not

militate against continuing the detention. The Wroclaw Regional

Prosecutor participated in the court session.

On 16 April 1996 the Trzebnica District Court scheduled a hearing

for 17 June 1996.

On 7 June 1996 the applicant filed an application form addressed

to the European Commission of Human Rights. It transpires from the

first page of the application that it was stamped by the Trzebnica

District Court on 17 June 1996.

The hearing of 17 June 1996 was cancelled and rescheduled for

5 August 1996.

On 5 August 1996 the trial commenced before the Trzebnica

District Court. The court heard evidence from the defendants. The

hearing was adjourned as one of the co-defendants had failed to appear.

In the course of the hearing the applicant requested the court to quash

the order for detention. Apparently, his request was dismissed on the

same day.

On 12 August 1996 the subsequent hearing was adjourned on the

ground that one of the co-defendants had failed to appear. In the

course of the hearing the applicant again requested the court to quash

the detention order. The request was dismissed on the same day.

On 26 August 1996 the next hearing was adjourned as the injured

party had appeared before the court in a state of intoxication. In the

course of the hearing the applicant requested the court to quash the

detention order. On the same day the court released the applicant in

view of the fact that the latter had confessed his guilt and had given

comprehensive testimony.

On 6 September 1996 the Wroclaw Regional Court, upon the

Trzebnica District Prosecutor's appeal, quashed the decision of the

Trzebnica District Court of 26 August 1996. The court ordered that the

applicant should be redetained in view of the need to ensure the due

course of proceedings and the likelihood of a severe penalty. The

court also held that the further detention on remand was justified

because the applicant had gone into hiding before he was arrested. The

court's session was held in camera. The Wroclaw Regional Prosecutor

participated in the court session.

On 16 September 1996 the subsequent hearing was cancelled because

the presiding judge was ill.

On 23 September 1996 the applicant was redetained.

On 7 October 1996 the trial before the Trzebnica District Court

came to an end. However, the court ordered that the judgment be given

on 9 October 1996.

In the meantime, on an unspecified date, the defence lawyer of

one of the co-defendants requested the court to confront certain

witnesses with each other.

On 9 October 1996 the Trzebnica District Court ordered the trial

to be re-opened and to re-hear those witnesses.

On 21 October 1996 the court heard the witnesses and ordered that

the judgment be rendered on 23 October 1996.

On 23 October 1996 the Trzebnica District Court convicted the

applicant of trivial robbery and sentenced him to two years and six

months' imprisonment. The applicant's lawyer lodged a notice of appeal

with the Trzebnica District Court; however neither the applicant nor

the lawyer lodged an appeal against the judgment of the court of first

instance.

B. Relevant domestic law and practice

1. Preventive measures, in particular detention on remand.

The Polish Code of Criminal Procedure lists as "preventive

measures", inter alia, detention on remand, bail and police

supervision.

Until 4 August 1996 (i.e. the date on which the Law on Amendments

to the Code of Criminal Procedure and Other Criminal Statutes entered

into force) detention on remand was imposed by an investigating

prosecutor. A detainee could appeal, within a seven-day time-limit,

to the court competent to deal with his case against an order for his

detention; however, he was not entitled to be brought before a judge,

whereas the court examined his appeal in the presence of a prosecutor.

A detention order was enforceable on the date of its issue. It became

final either after the expiry of the seven-day time-limit set out for

lodging an appeal, or on the date on which it was upheld by a court

dealing with the appeal.

Section 210 paras. 1 and 2 of the Code of Criminal Procedure (in

the version applicable at the material time) stated:

"1. Preventive measures shall be imposed by the court; before

a bill of indictment has been lodged with the competent court,

the measures shall be imposed by the prosecutor.

2. A prosecutor may impose a preventive measure only with

respect to a person who has been interrogated in the case as a

suspect. Before ordering detention on remand or deciding on bail

the prosecutor shall personally hear the suspect."

According to Section 222 of the Code of Criminal Procedure (in

the version applicable at the material time) the prosecutor could order

detention on remand for a period not exceeding three months. When, in

view of the particular circumstances of the case, the investigation

could not be terminated within this period, detention on remand could,

if necessary, be prolonged by the court competent to deal with the

case, upon the investigating prosecutor's request, for a period not

exceeding one year.

Section 209 of the Code of Criminal Procedure stated:

"Preventive measures may be imposed in order to secure the due

course of proceedings if the evidence against the accused

sufficiently justifies the opinion that he has committed a

criminal offence."

The Code of Criminal Procedure sets out the margin of discretion

as to maintaining the specific preventive measure. Detention on remand

is regarded as the most extreme among the preventive measures and the

domestic law lays down that in principle it should not be imposed if

more lenient measures are adequate and sufficient.

Section 213 para. 1 of the Code of Criminal Procedure provides:

"1. A preventive measure [including detention on remand] shall

immediately be quashed or altered, if the basis therefor has

ceased to exist or new circumstances have arisen which justify

quashing a given measure or replacing it with a more or less

severe one."

2. Prosecutor.

Chapter III of the Code of Criminal Procedure entitled "Parties

to proceedings, defence counsel, representatives of victims and

representatives of society" describes a prosecutor as a party to

criminal proceedings. According to all the relevant provisions of the

Code read together, a prosecutor performs investigative and prosecuting

functions in the course of criminal proceedings. In particular, after

completing the investigation, he draws up a bill of indictment and

represents the prosecuting authority before the court competent to deal

with the case.

Under Section 3 of the Code of Criminal Procedure "... organs

conducting criminal proceedings [including a prosecutor] shall examine

and take into account exonerating as well as incriminating evidence.

As regards the general position of a prosecutor at the material

time, he was subordinate to the Prosecutor General. He was not,

therefore, independent of the executive since the Minister of Justice

carried out the duties of the Prosecutor General.

3. Domestic remedies relating to the lawfulness and length of

detention on remand.

At the material time there were three different proceedings

enabling a detainee to challenge the lawfulness of his detention and

thus possibly obtain release. Under Section 212 para. 2 of the Code

of Criminal Procedure he could appeal to a court against a detention

order made by a prosecutor. Under Section 222 paras. 2(1) and 3 he

could appeal against a further decision by that court prolonging his

detention on a prosecutor's request. Finally, Section 214 of the Code

stated that an accused could at any time apply to the competent

authority to have a preventive measure quashed or altered. Such an

application had to be decided by the prosecutor or, after the bill of

indictment had been lodged, by the court competent to deal with the

case, within a period not exceeding three days.

COMPLAINTS

1. The applicant complains under Article 5 para. 3 of the Convention

that:

a) he was deprived of his liberty by the decision of the prosecutor,

who was a party to the proceedings and not a judge or other officer

authorised by law to exercise judicial power; and

b) the length of his detention on remand exceeded a "reasonable

time" within the meaning of this provision.

2. He further complains under Article 6 para. 1 of the Convention

that the criminal proceedings instituted against him were lasting for

an unreasonably long time.

3. Finally, the applicant complains under Article 6 para. 3 (c) of

the Convention that he was deprived of his defence rights on account

of the fact that he was never brought before a judge competent to

review his requests for release, nor was his lawyer entitled to attend

any court session concerning the lawfulness of his detention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 December 1995 and registered

on 11 July 1996.

On 17 January 1997 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on 18 April

1997, after an extension of the time-limit fixed for that purpose. The

applicant replied on 18 June 1997, stating that he wished to pursue his

application only insofar as it concerned the complaints submitted by

him under Article 5 para. 3 of the Convention. He also stated that he

wished to withdraw the remainder of his complaints.

On 3 February 1997 the Government submitted a translation of

their observations.

THE LAW

1. The applicant complains under Article 5 para. 3 (Art. 5-3) of the

Convention that he was deprived of his liberty by the decision of the

prosecutor, who was a party to the proceedings and not a judge or other

officer authorised by law to exercise judicial power.

Article 5 para. 3 (Art. 5-3) of the Convention, insofar as

relevant, provides:

"3. Everyone arrested or detained in accordance with the

provisions of paragraph 1 (c) of this Article shall be brought

promptly before a judge or other officer authorised by law to

exercise judicial power ..."

a) "Under Article 26 (Art. 26) of the Convention "the Commission may

only deal with the matter after all domestic remedies have been

exhausted, according to the generally recognised rules of international

law, and within a period of six months from the date on which the final

decision was taken".

The Government maintain, first, that the applicant did not

exhaust the remedies available to him under domestic law as he failed

to submit an appeal, under Section 212 para. 2 of the Code of Criminal

Procedure, against the detention order of 14 June 1995. They further

submit that the applicant could, by means of such an appeal, have

challenged both substantive and formal aspects of the lawfulness of his

detention on remand. In the Government's opinion, the applicant could,

therefore, also contest the fact that it was a prosecutor who had

ordered his detention on remand.

The applicant admits that he failed to appeal against the

detention order of 14 June 1994.

The Commission notes that under Polish law applicable at the

material time the applicant could, by lodging an appeal against the

detention order, have contested the lawfulness of his detention. He

could not, however, on the domestic level, have challenged the power

of the prosecutor to order his detention because, under Section 210

para. 1 of the Polish Code of Criminal Procedure, only a prosecutor was

competent to detain a suspect on remand during the investigative stage.

Moreover, under the national law, the applicant was not entitled to be

brought before a judge dealing with an appeal against the detention

order. Accordingly, an appeal against the detention order of 14 June

1995 cannot be regarded as a remedy whereby the applicant could have

been promptly brought before a judge.

It follows that this complaint cannot be rejected for non-

exhaustion of domestic remedies within the meaning of Article 26

(Art. 26) of the Convention.

b) The Government maintain, secondly, that the applicant also failed

to submit this complaint within the six-month period referred to in

Article 26 (Art. 26) of the Convention.

They further submit that the applicant complains about a single,

concrete fact, namely that the investigating prosecutor, who, in his

opinion, was not impartial, ordered his detention on remand. Hence,

the concept of "continuing violation" does not apply to the present

case (see No. 214/56, Yearbook 2, p. 214 and No. 8317/78, Dec.

15.5.1980, D.R. 20, p. 44 and 76).

In this respect the Government point out that the Trzebnica

District Prosecutor made an order for the applicant's detention on

14 June 1995 and, accordingly, the six-month period began running on

this date. Since the applicant introduced his complaints on 20

December 1995, he clearly failed to respect the six-month time-limit

prescribed by Article 26 (Art. 26) of the Convention.

The applicant replies that at the time of introducing his

complaints he was not aware of how the period concerned should be

calculated.

The Commission recalls that where no domestic remedy is available

the six-month period runs from the act alleged to constitute a

violation of the Convention; however, where it concerns a continuing

situation, it runs from the end of the situation concerned (see, e.g.

No. 14807/89, Dec. 12.2.92, D.R. 72, p. 148; No. 19601/92, Dec.

19.1.95, D.R. 80-B, p. 46; No. 34578;/97, Dec. 1.12.97, unpublished)).

As regards the present case, the Commission notes that the

applicant's complaint that his detention on remand was ordered by the

investigating prosecutor arose out of domestic legislative provisions,

i.e. Sections 210 and 222 of the Polish Code of Criminal Procedure,

which, at the material time, explicitly excluded the possibility of a

person detained at the investigative stage being brought before anyone

other than a prosecutor. The existence of such provisions created,

therefore, a situation in which the person concerned could be for a

long time deprived of his right to be brought before an authority,

which could be considered to constitute "a judge or other officer

authorised by law to exercise judicial power" within the meaning of

Article 5 para. 3 (Art. 5-3) of the Convention.

The Commission further notes that the applicant was brought

before a trial judge on 5 August 1996, when the first hearing in his

case took place and that, during this hearing, he requested the court

to release him. This day he was personally present before a person

clearly acting in a judicial capacity for the first time since his

detention had been ordered by the prosecutor on 14 June 1995.

The Commission therefore considers that the breach of the

Convention of which the applicant complains continued until the point

at which he eventually appeared before a trial judge and could even be

considered to have been gradually aggravated during that period.

Accordingly, the Commission considers that the running of the

six-month period in respect of the present complaint commenced on

5 August 1996.

It follows that this complaint cannot be rejected as being lodged

out of time.

c) The Government contend that in any event this part of the

application is manifestly ill-founded. Thus, under the domestic law,

a prosecutor is considered to be a guardian of the public interest.

Under Section 7 of the Act of 20 June 1985 on Public Prosecutors he

must, when carrying out his duties, follow the principle of

impartiality. Under the provisions of the Code of Criminal Procedure,

in particular Section 3, he is, at any stage of the proceedings, bound

by the general principle of objectivity and obliged to take into

account exonerating as well as incriminating evidence.

They maintain that a prosecutor's function is not limited to a

duty to collect evidence in criminal proceedings. He is obliged to

assess evidence and, when he finds that a given offence does not create

a danger to society, he may order that the investigation be

discontinued either conditionally or unconditionally. Such a decision

should be considered as an act of administration of justice.

The Government admit that in criminal proceedings a prosecutor

acts as a party. This, however, does not absolve him from his general

duty to follow the principles of impartiality and objectivity. For

instance, he may file any appeal on behalf of a defendant if he

considers this justified.

They further stress that in the present case the Trzebnica

District Prosecutor personally heard the applicant before ordering his

detention. Thus, the procedural requirements prescribed by Article 5

para. 3 (Art. 5-3) of the Convention were complied with. They conclude

that this fact taken together with the general position of a prosecutor

in criminal proceedings fully justifies the opinion that the

investigating prosecutor, when detaining the applicant, acted in the

capacity of a "judicial officer" within the meaning of para. 3 of

Article 5 (Art. 5) of the Convention (see Eur. Court HR, Schiesser v.

Switzerland judgment of 4 December 1979, Series A no. 34, pp. 13-14,

para. 31).

The applicant generally contests the Government's submissions,

asserting that the Trzebnica District Prosecutor, when ordering his

detention, did not offer sufficient guarantees of independence as

required under Article 5 para. 3 (Art. 5-3) of the Convention.

The Commission considers, in the light of the parties'

submissions, that this complaint raises complex issues of law and of

fact under the Convention, the determination of which should depend on

an examination of its merits. The Commission concludes, therefore,

that this complaint is not manifestly ill-founded, within the meaning

of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds

for declaring it inadmissible have been established.

2. The applicant further complains under Article 5 para. 3

(Art. 5-3) of the Convention that the length of his detention on remand

exceeded a "reasonable time" within the meaning of this provision.

Article 5 para. 3 (Art. 5-3) of the Convention, insofar as

relevant, provides:

3. Everyone arrested or detained in accordance with the

provisions of paragraph 1 (c) of this Article ... shall be

entitled to trial within a reasonable time or to release pending

trial. Release may be conditioned by guarantees to appear for

trial."

a) Under Article 26 (Art. 26) of the Convention, "the Commission may

only deal with the matter after all domestic remedies have been

exhausted, according to the generally recognised rules of international

law."

The Government submit that the applicant has not complied with

the requirements of Article 26 (Art. 26) of the Convention since he has

not exhausted all the remedies available to him under Polish law.

Firstly, the applicant failed to appeal against the detention order

made by the Trzebnica District Prosecutor on 14 June 1995. Secondly,

he did not appeal against the two subsequent decisions dismissing his

requests for release given by the Wroclaw Regional Court on 13 October

1995 and by the Trzebnica District Court on 13 March 1996. As a

consequence, the applicant did not avail himself of remedies which were

adequate and effective and which, in case of a favourable decision,

would have resulted in his release.

The applicant admits that he did not appeal against the above-

mentioned decisions. However, any such appeals by him would have poor

prospects of success, especially at an early stage of the proceedings.

At this stage, the purpose of which was to collect evidence in support

of the charge laid against him, it was unlikely that the authorities

would have released him, given that they subsequently refused to do so

even though he had confessed his guilt and cooperated with them.

Moreover, any appeal by him against the above-mentioned court decisions

might have resulted in the proceedings being prolonged.

The applicant contends that there is no failure on his part as

regards the exhaustion of domestic remedies, since, on several other

occasions, he requested the authorities to release him and lodged

appeals against their refusals to release him.

The Commission recalls that under Article 26 (Art. 26) of the

Convention an applicant must make a normal use of those domestic

remedies which are likely to be effective and sufficient. When a

remedy has been attempted, use of another remedy which has essentially

the same objective is not required (No.11471/85, Dec. 19.1.89, D.R. 59,

p. 67). It further recalls that the rule concerning the exhaustion of

domestic remedies does not require that an appeal be introduced which

would have

no chance of success (see No. 13251/87, Dec. 6.3.91, D.R. 68, p.138;

No. 13134/87, Dec. 13.12.90, D.R. 67, p. 216).

The Commission notes that the applicant failed to appeal against

the decisions referred to by the Government. However, on 5 December

1995 he requested the Wroclaw Regional Court to release him. He filed

an appeal against that court's decision dismissing his request. On

16 January 1996 he lodged a similar, unsuccessful request with the

Trzebnica District Court and, subsequently, appealed to the Wroclaw

Regional Court against a further refusal to release him.

Under Polish law such requests and appeals secure a judicial

review of the lawfulness of detention on remand and their purpose is

to obtain release. They constitute, therefore, an adequate and

effective remedy against the length of detention. Since the remedies

relied on by the Government would have the same objective, the

applicant should not, in the Commission's opinion, be required to avail

himself of such other remedies.

It follows that this complaint cannot be rejected for non-

exhaustion of domestic remedies.

b) The Government further submit that it cannot be said that the

applicant's detention on remand, which lasted for approximately one

year and three months, was in itself long enough to exceed a

"reasonable time" within the meaning of Article 5 para. 3 (Art. 5-3)

of the Convention.

Furthermore, they point out that the charge laid against the

applicant was of a serious nature. Had the applicant been convicted

of robbery, a sentence of up to fifteen years' imprisonment might have

been imposed on him. There was another aggravating factor, namely that

the applicant had a previous criminal record, which had to be taken

into account by the authorities concerned. Finally, at the initial

stage of the proceedings he went into hiding which prompted the

prosecutor to issue a warrant to search for him by a wanted notice.

As a consequence, there was a risk that the applicant might abscond or

obstruct the due course of the proceedings. This justified his

continuing detention.

According to the Government, the authorities pursued the

applicant's case with due diligence. In particular, there were no

periods of inactivity on their part. The prolongation of the

proceedings resulting from the fact that, due to the amendment to the

Code of Criminal Proceedings relating to the jurisdiction of criminal

courts which took effect on 1 January 1996, the applicant's case was

transferred from the Wroclaw Regional Court to the Trzebnica District

Court was not attributable to the courts dealing with the applicant's

case.

The applicant submits that the issue of the warrant to search for

him by a wanted notice was premature and unnecessary as at the material

time he was remaining at home where, finally, he was arrested by the

police. Moreover, at an early stage of the investigation he confessed

his guilt. This clearly showed his willingness to cooperate with the

authorities. There was, therefore, no risk that he would obstruct the

due course of the proceedings. Finally, as he had decided to make a

plea in mitigation, it was not in his interest to evade justice or any

sentence which might have been imposed.

The Commission considers, in the light of the parties'

submissions, that this complaint raises complex issues of law and of

fact under the Convention, the determination of which should depend on

an examination of its merits. The Commission concludes, therefore,

that this complaint is not manifestly ill-founded, within the meaning

of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds

for declaring it inadmissible have been established.

3. The applicant also complains under Article 6 para. 1 (Art. 6-1)

of the Convention that the criminal proceedings instituted against him

lasted for an unreasonably long time. Under Article 6 para. 3 (c)

(Art. 6-3-c) of the Convention he submits that he was deprived of his

defence rights on account of the fact that he was never brought before

a judge competent to review his requests for release, nor was his

lawyer entitled to attend any court session concerning the lawfulness

of his detention.

The Government contend that these complaints are manifestly ill-

founded.

The applicant submits that he does not wish to pursue this part

of the application.

In these circumstances, the Commission, having regard to the fact

that the applicant does not intend to pursue this part of his petition,

concludes, in accordance with Article 30 para. 1 (a) and (c)

(Art. 30-1-a, 30-1-c) of the Convention that it is no longer justified

to continue the examination of this part of the application.

The Commission also finds no reasons of a general character,

affecting respect for human rights, as defined in the Convention, which

require the further examination of the present complaints by virtue of

Article 30 para. 1 in fine(Art. 30-1) of the Convention.

For these reasons, the Commission,

by a majority,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaints that he was detained on remand by the

investigating prosecutor who was neither a judge nor another

officer authorised by law to exercise judicial power and that the

length of his detention on remand exceeded a "reasonable time";

unanimously,

DECIDES TO STRIKE THE REMAINDER OF THE APPLICATION OUT OF ITS

LIST OF CASES.

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

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CHOJAK v. POLAND

CHOJAK v. POLAND

LEXI